Strangulation Charges in New York

The Three Degrees

All three offenses share the same core conduct. A person, with intent to impede the normal breathing or circulation of the blood of another person, applies pressure on the throat or neck or blocks the nose or mouth. What raises the grade is the result.

"Physical injury" means impairment of physical condition or substantial pain (PL § 10.00(9)). "Serious physical injury" means injury that creates a substantial risk of death or causes death, serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of a bodily organ (PL § 10.00(10)).

A separate statute, aggravated strangulation under PL § 121.13-a, applies only to police and peace officers who cause serious physical injury or death with a chokehold. It does not come up in domestic cases.

Penalties

Criminal obstruction of breathing is punishable by up to 364 days in jail or three years of probation. Because it is a crime and not a violation, a conviction is a permanent criminal record.

Strangulation in the second degree is a violent felony offense under PL § 70.02. If the court imposes state prison, the sentence must be a determinate term of two to seven years followed by post-release supervision. For a person with no prior felony conviction, probation and other non-prison sentences remain legally available, which is why early negotiation matters. Strangulation in the first degree carries a determinate term of three and a half to fifteen years, and prison is mandatory. A defendant with a prior felony conviction within the past ten years faces higher mandatory ranges on either felony.

How a Misdemeanor Becomes a Felony

The second-degree statute is written broadly. "Any other physical injury or impairment" reaches well beyond loss of consciousness. In practice the felony is charged when the complainant reports blacking out, seeing stars, becoming dizzy, being unable to speak, or losing bladder control, or when the hospital record notes petechiae (pinpoint red spots in the eyes or on the face), bruising or redness on the neck, a hoarse voice, or pain on swallowing.

Many of these are self-reported symptoms, recorded by a triage nurse or a responding officer using a strangulation checklist. They are rarely confirmed by imaging or by a physician's findings. That is where the defense works. If the People cannot prove stupor, loss of consciousness, or a physical injury beyond a reasonable doubt, the felony does not stand, and the case is a misdemeanor.

Timing matters as well. A felony complaint has to be presented to a grand jury, and a defendant held in custody must be released if the People do not indict or hold a hearing within the period set by CPL § 180.80. Prosecutors evaluate the medical proof during that window, and a well-supported presentation from the defense can result in a reduction to the misdemeanor before any indictment is voted.

Defenses

• No intent to impede breathing or circulation. The statute requires a specific intent. A push to the upper chest, a grab of a collar, or contact with the neck during a mutual struggle is not strangulation unless the People prove that the purpose was to cut off air or blood.
• Justification. Self-defense under PL Article 35 applies to strangulation charges as it does to assault. Defensive injuries on the accused (scratches to the face, bite marks on the forearm) are often consistent with both versions of the event, and we document them immediately.
• Insufficient medical proof. We obtain the complete hospital chart, the EMS report, and the photographs. Absence of petechiae, a normal neck examination, and a normal voice on the 911 recording and body-worn camera footage all cut against the felony.
• Credibility and motive. Strangulation allegations often surface during a breakup, a custody dispute, or an immigration petition. Prior inconsistent statements, text messages sent after the incident, and the timing of the report are all cross-examination material.
• Medical or dental purpose. PL § 121.14 makes it an affirmative defense that the conduct was performed for a valid medical or dental purpose.

Bail, Orders of Protection, and Firearms

Both felony degrees are violent felony offenses, so they qualify for monetary bail. The misdemeanor also qualifies for bail when it is alleged against a member of the same family or household, which makes it one of the few misdemeanors on which a judge may set bail. We come to the arraignment with a release plan, including a separate address where the client will stay.

The court will issue an order of protection at arraignment, almost always a full stay-away order in a strangulation case. Any conviction, including the misdemeanor, is very likely to count as a "misdemeanor crime of domestic violence" under federal law when the complainant is a spouse, partner, or co-parent, which means a lifetime federal firearms ban. Non-citizens face separate immigration consequences.

When the Complainant Recants

Strangulation cases are the ones prosecutors are least willing to dismiss when the complainant stops cooperating. Domestic violence bureaus treat a prior strangulation as a marker of future risk, and they will try to go forward on the 911 call, the body-worn camera footage, and the medical records. Whether they can do so depends on the hearsay rules and the Confrontation Clause. See Can the Complainant Drop the Charges?

Is "Battery by Strangulation" a New York Charge?

No. "Domestic battery by strangulation" is the name of a Florida offense (Fla. Stat. § 784.041), a third-degree felony in that state. New York has no crime called battery. Here, battery is a civil claim, and the criminal charges for the same conduct are the Article 121 offenses described above, usually accompanied by assault in the third degree or harassment. If you were arrested in New York, the Florida statute and its penalties do not apply to you.

Talk to a Lawyer Before You Talk to Anyone Else

If you have been arrested for strangulation or criminal obstruction of breathing in New York, or a detective has asked you to come in, call us at 212-233-1233 or email [email protected].